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Friday, August 11, 2006

Ind. Decisions - Court of Appeals issues six today

In Angelic Davis v. State of Indiana, a 7-page opinion, Judge Baker writes:

Appellant-defendant Angelic Davis appeals from the sentence imposed on her convictions for Operating a Vehicle While Intoxicated (OVWI),1 a class C felony and Criminal Recklessness,2 a class A misdemeanor. We find that the trial court improperly used an element of the OVWI offense as an aggravating circumstance and that her sentence of eight years with two years suspended is inappropriate in light of her character. Thus, we reverse the judgment of the trial court and remand with instructions to revise Davis’s sentence to four years with whatever time remains on her sentence to be served through the Community Corrections program.
In John R. Roddie, et al. v. North American Manufactured Homes, a 9-page opinion, Judge Baker writes:
Appellants-plaintiffs John R. and Shannon M. Roddie appeal the trial court’s grant of appellee-defendant North American Manufactured Homes, Inc.’s (NAMH) motion to dismiss. Specifically, the Roddies argue that the trial court erred in finding that the contract between the parties for the construction of a modular home (Contract) required this dispute to be submitted to arbitration. Finding that the Contract is not unconscionable or illusory and that this dispute falls within the agreement to arbitrate, we affirm the judgment of the trial court.
Michael Newsom v. State of Indiana - "Because Newsom is not a “convicted person” and the juvenile court’s disposition does not constitute a “sentence,” we conclude that Indiana Code Section 35-38-1-15 is not available to Newsom as a means to challenge his juvenile disposition. * * * Therefore, the juvenile court properly denied Newsom’s motion to correct erroneous sentence."

In Thorton-Tomasetti Engineers v. Marion County Public Library, a 22-page opinion (with a concurring opinion beginning on p. 18), Judge Baker writes:

This case arises out of the renovation and expansion of the Indianapolis-Marion County Public Library (the Project). Work on the Project commenced in September 2002, and is scheduled to be completed in February 2008. The estimated cost of the Project when work began was approximately $105 million.

Appellant-defendant Thornton-Tomasetti Engineers (Thornton) appeals from the trial court’s denial of a preliminary injunction that it had sought with regard to work that it had performed for appellee-plaintiff, the Library. In particular, Thornton—the engineer involved in the Project—contends that the trial court erred in dismissing its request for a preliminary injunction because it had offered evidence on all of the elements required to obtain such relief. Thornton also maintains that the trial court erred in denying its request to enter the Library’s premises in order to conduct certain testing on the construction site, and seeks to appeal the trial court’s grant of a protective order in favor of the Library with regard to Thornton’s request to conduct the further testing.

Concluding that the trial court properly dismissed Thornton’s request for a preliminary injunction, we affirm. We also grant the Library’s motion to dismiss the portion of Thornton’s appeal challenging the denial of its request to enter the premises to conduct further testing, as well as the matters relating to the protective order that was entered in favor of the Library.

In Michael Copenhaver, et al. v. Steve Lister, et al., a 20-page opinion, Judge Baker writes:
This appeal arises from a dispute between Steve Lister and Michael Copenhaver, two well-drillers, whose business relationship dissolved in late 2001. Appellants-defendants Michael and Paula Copenhaver (collectively, the Copenhavers) appeal the judgment entered in favor of appellee-plaintiff Steve Lister, d/b/a Lister Well Drilling (Lister), regarding his claim against them for replevin of certain business assets and conversion. Specifically, the Copenhavers contend that the trial court’s judgment cannot stand because the finding that no partnership existed between the parties was based upon “mutually contradictory” evidence in the record. Thus, the Copenhavers allege that they are entitled to a new trial.

Lister also cross-appeals, claiming that the appeal should be dismissed because the Copenhavers failed to timely file their Notice of Appeal. Concluding that this appeal is properly before us, and finding that the trial court did not err in concluding that no partnership existed between Lister and Copenhaver, we affirm the judgment of the trial court.

In Robert S. Kentner v. Indiana Public Employers' Plan, Inc., a 19-page opinion (with a concurring opinion beginning on p. 18), Judge Baker writes:
Appellant-plaintiff Robert S. Kentner appeals from the trial court’s order granting the Trial Rule 12(B)(8) motion to dismiss of appellee-defendant Indiana Public Employers’ Plan, Inc. (IPEP). In particular, Kentner argues that the trial court erred in granting IPEP’s motion to dismiss because the action filed herein is not the same as an action—also involving Kentner and IPEP—currently pending in federal court. Additionally, Kentner argues that the trial court erred in dismissing his complaint pursuant to principles of comity. Finding that the Federal Rules of Civil Procedure do not trump an Indiana statute, we reverse the judgment of the trial court and remand for trial to determine whether IPEP is a public agency and Kentner is entitled to the requested documents pursuant to the Indiana Access to Public Records Act (APRA).

Posted by Marcia Oddi on August 11, 2006 02:16 PM
Posted to Ind. App.Ct. Decisions